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Calderon v. Wheeler


July 28, 2009


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Currently before the Court in this pro se prisoner civil rights action filed by Victor Calderon ("Plaintiff") are (1) motions for summary judgment filed by Defendants Sandra A. Wheeler, Lori Montroy, Donna Peppin, Wendy McIntosh and Jackie Coleman (Dkt. Nos. 116, 118), (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendants' motions be granted (Dkt. No. 135), and (3) Plaintiff's Objections to the Report-Recommendation. (Dkt. Nos. 137, 138, 139.) For the reasons set forth below, the Report-Recommendation is accepted and adopted, and Defendants' motions are granted, and Plaintiff's Amended Complaint is dismissed.


On January 22, 2007, after being granted permission by the Court, Plaintiff filed an Amended Complaint in this action, asserting claims against the following five DOCS employees: Nurse Sandra A. Wheeler at Coxsackie Correctional Facility, Nurse Donna Peppin and Nurse Wendy McIntosh at Franklin Correctional Facility, Lori Montroy, a Nurse Administrator at Franklin Correctional Facility, and Jackie Coleman, a corrections officer at Franklin Correctional Facility. (Dkt. No. 16.)

Construed with the utmost liberality, Plaintiff's Amended Complaint alleges that Defendants were deliberately indifferent to his serious medical needs, including those arising from a buttock cyst and a condition causing him to experience low testosterone levels, in violation of the Eighth Amendment. (Id.) In addition, Plaintiff's Amended Complaint alleges in an attachment to his Amended Complaint that he was issued a false misbehavior report, subject to verbal harassment, and denied recreation by the Defendants assigned to work at Franklin Correctional Facility. (Id.)

On July 30, 2008, Defendant Wheeler filed a motion for summary judgment seeking dismissal of all claims, arguing that Plaintiff (1) has failed to establish a claim for medical indifference, and (2) has failed to exhaust administrative remedies. (Dkt. No. 116.) On July 31, 2008, Defendants Montroy, Peppin, McIntosh, and Coleman submitted their motion for summary judgment seeking dismissal of all claims against them, arguing that Plaintiff (1) has failed to establish a medical indifference claim, and (2) has failed to exhaust administrative remedies.

(Dkt. No. 118.) Plaintiff did not submit a response to either motion.

On March 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that the action be dismissed in all respects. (Dkt. No. 135.) Familiarity with the grounds of Magistrate Judge Peebles' Report-Recommendation is assumed in this Decision and Order.

On April 13, 2009, Plaintiff filed the first of three Objections to the Report-Recommendation. (Dkt. No. 137.) Plaintiff's subsequent Objections were filed on April 20, 2009, and April 24, 2009. (Dkt. Nos. 138, 139.)


A. Standard of Review

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing Motion for Summary Judgment

Magistrate Judge Peebles correctly recited the legal standard governing a motion for summary judgment, including the standard governing such motions that are not properly opposed by pro se litigants. (Dkt. No. 135, at 13-15.) As a result, that standard is incorporated by reference herein.

The Court would only add that, where a non-moving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmoving party is proceeding pro se.*fn3

This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.*fn4 (In this case, the Court finds that Plaintiff received such notice at least twice. See, e.g., Dkt. No. 116, Part 1; Dkt. No. 118, Part 1.)*fn5 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.*fn6 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement*fn7 -even where the nonmoving party was proceeding pro se in a civil rights case.*fn8


The Court begins by noting that the only objections offered by Plaintiff to Magistrate Judge Peebles' Report-Recommendation are simply (1) general objections to the Report- Recommendation, and/or (2) reiterations of the medical indifference claims as well as other conspiracy claims surrounding medical personnel asserted in his Amended Complaint, and/or (3) new claims arising from events occurring after the date of his Amended Complaint. (See Dkt. Nos. 137, 138, 139.) As a result, a clear-error standard of review is appropriate.

After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' Report-Recommendation, and Plaintiff's Objections thereto, the Court concludes that the Report-Recommendation is well-reasoned and not clearly erroneous. Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons stated therein. The Court would add only that the Report-Recommendation would survive even a de novo review.


ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 135) is ACCEPTED and ADOPTED; and it is further

ORDERED that Defendants' motions for summary judgment (Dkt. Nos. 116, 118) are GRANTED in their entirety, and that Plaintiff's Amended Complaint (Dkt. No. 16) is DISMISSED in all respects.

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